An administrative law judge (ALJ) for the Equal Rights Division of the Department
of Workforce Development issued a decision in this matter. A timely petition for
review was filed.

The commission has considered the petition and the positions of the parties, and it
has reviewed the evidence submitted to the ALJ. Based on its review, the
commission agrees with the decision of the ALJ, and it adopts the findings and
conclusion in that decision as its own, except that it makes the following
modifications:

1. In the fifth paragraph of the administrative law judge's ORDER the amount
"$20,391.43" is deleted and the amount "$19,641.43" is substituted
therefor.

2. The following paragraph is inserted after paragraph five of the
administrative law judge's ORDER:

"The respondent shall pay to the complainant reasonable
attorney fees and costs associated with replying to the
respondent's petition for commission review in the amount of
$1,725.00. A check in that amount shall be made payable
jointly to the complainant and Attorney Bradley S. Stern and
delivered to Attorney Stern."

3. Paragraph six of the administrative law judge's ORDER is deleted and the
following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an
appeal may be taken herein, the respondent shall submit a
compliance report detailing the specific action taken to comply
with the commission's decision. The compliance report shall be
directed to the attention of Kendra DePrey, Labor and Industry
Review Commission, P.O. Box 8126, Madison, Wisconsin
53708. The statutes provide that every day during which an
employer fails to observe and comply with any order of the
commission shall constitute a separate and distinct violation of
the order and that, for each such violation, the employer shall
forfeit not less than $10 nor more than $100 for each offense.
See Wis. Stat. § § 111.395, 103.005(11) and
(12)."

4. The administrative law judge's ORDER is renumbered accordingly.

DECISION

The decision of the administrative law judge (copy attached), as modified, is
affirmed.

Dated and mailed February 6, 2004
sternmi . rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Disputed Findings of Fact

In the brief in support of its petition for commission review the respondent points
out four factual findings made by the administrative law judge which it claims are
erroneous or lack evidentiary support. The respondent's quarrels with the
administrative law judge's findings of fact are without merit. First, the respondent
claims that the administrative law judge's finding that the complainant worked in
the hospital division only four weeks (1) is contrary to the evidence and that, in fact, he was there six
weeks. However, while the respondent correctly identifies those portions of the
testimony which suggest that the complainant was in the hospital division six
weeks, it ignores that evidence which indicates otherwise. The complainant's
supervisor, Stanley Dziewa, testified that the complainant started in the division in
September of 2001, and it is undisputed that the complainant's discharge date
was October 8, 2001. (T. 39, 128, 299.) While it is possible that the complainant
began working in the hospital division during the first three days of September
-- in
which case he would have been in the hospital division about five weeks at the
time of his discharge -- the administrative law judge's finding that the complainant
worked in the hospital division for about four weeks appears to be accurate.

Next, the respondent maintains that the administrative law judge erroneously
found that the complainant needed training in the operation of the hospital
division's infant security system upon his reassignment. The respondent again
asserts that this finding is contrary to the evidence. The respondent's argument
fails where the complainant's supervisor specifically testified that new sales
representatives were trained on the computerized system and that the
complainant received such training. (T. 43.)

The respondent next argues that the administrative law judge's finding that
Mr. Dziewa testified the complainant was on track to sell $5 million in the future
was erroneous and that the record reflects no such testimony. However, the
transcript reveals that Mr. Dziewa specifically testified that the complainant had
an opportunity to do about $5 million in sales and that he felt the complainant
was on track of accomplishing that goal. (T. 44.)

Finally, the respondent takes issue with the administrative law judge's finding that
Mr. Dziewa was generally satisfied with the complainant's performance. The
respondent claims this finding overstates Mr. Dziewa's testimony that the
complainant performed "average" for a new employee. Again, the respondent's
argument demonstrates a selective reading of the transcript. While Mr. Dziewa did
state that the complainant performed "average" for a new employee, he also stated
that the complainant's sales performance was acceptable based upon how long he
had been in the division, and that he never had any complaints from customers
about the complainant's performance nor reprimanded the complainant for any
misconduct. (T. 46, 50-51.) When asked by the complainant's attorney whether
he was dissatisfied with the complainant's performance, Mr. Dziewa agreed this
was not the case. (T. 70.) Based on the foregoing, it is reasonable to infer that
Mr. Dziewa was generally satisfied with the complainant's performance.

Arguments on the Merits

In its brief the respondent argues strenuously that the complainant did not
establish a prima facie case because he did not prove that similarly situated
younger employees were treated more favorably. The respondent asserts that this
is a fatal deficiency which makes further analysis of the case unnecessary.
However, as the respondent acknowledges in the very next sentence of its brief, it
is not necessary to evaluate the individual elements of the complainant's
prima facie case where the respondent produced evidence of a legitimate, non-discriminatory reason for its treatment of the complainant. Indeed, it is a well
established principal that, if an employer articulates a legitimate non-discriminatory reason for a discharge or other employment action, the issue of
whether the complainant has established a prima facie case becomes moot.
Instead, once such a reason is articulated, the burden of proof reverts to the
complainant to show that this reason is a pretext for discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715, 31 FEP 609, 611 (1983);
Naill v. Western Wisconsin Technical College (LIRC, 02/12/99); Kurtz v. School Dist.
of St. Croix Falls (LIRC, June 10, 1993); Duarte-Vestar v. Goodwill Industries (LIRC,
Nov. 9, 1990); Mouncil v. Pepsi Cola (LIRC, Feb. 16, 1989).

Next, the respondent argues that the complainant failed to demonstrate that the
reasons given for his layoff were a pretext for discrimination. The respondent
contends that the complainant was identified as one of ten employees whose
positions could be eliminated with a minimal impact on the respondent's
immediate operations. It maintains that the other sales managers had
significantly greater sales and, although they were performing below their sales
goals, had developed more extensive contacts in the territories in which they were
operating such that discharging one of them would have had a more significant
impact on the respondent's immediate operations. The respondent contends that,
in contrast, the complainant was an expendable employee. It maintains that, in
concluding otherwise, the administrative law judge improperly substituted her
judgment for the respondent's with regard to the manner in which the
complainant should have been ranked. The commission has considered this
argument, but finds it unpersuasive. The respondent is entitled to base its
discharge decisions on the productivity of its employees at a given moment in time,
without regard to past performance or future likelihood of success, provided it
does not rely on discriminatory factors, and the fact finder's personal belief that
the respondent should have taken other factors into consideration is not reason
enough to find against it. However, a finder of fact could reasonably conclude, in
view of statements by the respondent's managers suggesting the respondent was
motivated to discharge the complainant because of his age, that the respondent
deliberately failed to take into account those mitigating factors which would have
explained the complainant's "C" rating and might have otherwise led it to decide
that he should nonetheless be retained. Indeed, the evidence reveals that the
respondent did question the "B" rating received by another salesman, who was not
in the protected age group and about whom no discriminatory statements had
been made, and that it took into consideration the circumstances explaining his
failure to meet sales goals. The evidence supports a conclusion that the
respondent deliberately failed to consider the validity of the complainant's "C"
rating because it felt he was too old for the job.

As the above suggests, this case turns on the testimony of the complainant's
supervisor, Mr. Dziewa, who indicated that two of the three managers involved in
the discharge decision had made negative comments about the complainant's age.
In its brief the respondent attempts to minimize this testimony by arguing that it
lacks credibility and, further, that even if such sentiments were uttered, they were
stray remarks and not connected to the discharge decision. The commission does
not find these arguments persuasive. The administrative law judge, who was
present at the hearing and was able to observe firsthand the demeanor of the
witnesses, found Mr. Dziewa to be a credible witness, and the commission sees no
compelling reason to disagree. Although Mr. Dziewa is no longer employed by the
respondent, the commission finds no reason to question his impartiality in this
matter. Moreover, in his testimony regarding his conversation with Glenn Jonas,
the owner of the company, Mr. Dziewa mentioned that Mr. Jonas made positive
remarks about the complainant's sales record, but indicated that he was
concerned the complainant was too old to be able to accept the new computer-
based technology that was being used in Mr. Dziewa's division. The fact that
Mr. Dziewa emphasized the positive comments about the complainant tends to
lend credibility to his testimony, and the commission finds Mr. Dziewa's testimony
to be balanced and credible overall.

In its brief the respondent points out that, while Mr. Jonas did not appear at the
hearing to rebut Mr. Dziewa's testimony about his statements, Mr. Bois did appear
at the hearing and denied having made the comments in question. However, it
would have been unusual for Mr. Bois to have admitted to making an inherently
discriminatory remark, and the commission finds his denial less persuasive than
Mr. Dziewa's testimony that the remarks were made.

The respondent also argues that Dri-Tec was a computer-based system, yet
Mr. Jonas wanted to hire the complainant for Dri-Tec and actively talked him out
of leaving the company in order to work for the Dri-Tec division. The respondent
additionally points out that the complainant's supervisor at Dri-Tec, James Huff,
testified that in his discussions with Mr. Jonas, Mr. Jonas never expressed doubts
about the complainant's ability to learn the computer system and that he believed
Mr. Jonas thought the complainant could handle Dri-Tec. However, Mr. Jonas did
not appear at the hearing to testify as to whether or not he believed the
complainant could handle the computer system in the hospital division, and the
fact that he may have felt the complainant was capable of handling Dri-Tec, prior
to the complainant's employment in the Dri-Tec division, does not suggest that he
had no subsequent doubts about the complainant's ability to learn a different
system. The respondent also points out that Mr. Jonas was older than the
complainant and that Mr. Bois was only a few years younger, making it less likely
that they would doubt the complainant's abilities based upon his age. However,
the commission does not find this argument persuasive. While the fact that two of
the decision-makers were similar in age to the complainant might suggest that
they would not prejudge his capabilities based upon his age, it is certainly not a
truism that employers do not discriminate against individuals in the same
protected class, and the credible evidence in this case indicates otherwise.

The respondent also takes issue with Mr. Dziewa's testimony that Terry Mammel,
the vice president of administration, mentioned the complainant's discharge would
be grouped in the same time frame as the company reorganization to help better
ease the litigation liability of that termination. The respondent contends that this
testimony is incredible because it would have required the respondent to
anticipate that the complainant would receive a "C" ranking so that it could group
him in with the larger lay-off. However, the commission sees no reason to doubt
the credibility of Mr. Dziewa's testimony on this point. Mr. Dziewa's other
testimony suggests that the respondent wanted to discharge the complainant, and
even assuming it could not have anticipated the "C" ranking, the fact remains that
that ranking provided it with an opportunity to do so. Mr. Mammel acknowledged
that he considered whether the lay-off list raised questions of age discrimination,
and it is clear that the respondent was cognizant of the need to ensure that the
complainant's discharge raised no red flags. Under all the circumstances, it is
certainly plausible that the respondent would have chosen to time the
complainant's discharge with a larger lay-off in order to conceal the fact of age
discrimination.

Having decided that Mr. Dziewa's testimony was credible, the commission next
addresses the respondent's argument that the comments in question can be
dismissed as mere "stray" remarks, unrelated to the complainant's ability to retain
his employment. The commission disagrees with this premise. The comments at
issue were remarks made by the decision-makers that went directly to the
question of whether the complainant would be able to succeed in the job and
whether he should still be working for the respondent. Moreover, the remarks
were made only a month prior to the complainant's discharge and, as such, would
appear to reflect Mr. Bois' and Mr. Jonas' current thinking on the subject of the
complainant's abilities. Given these circumstances, the commission concludes
that the discriminatory remarks were directly related to the respondent's decision
to discharge the complainant.

In support of its argument that the discriminatory remarks, if made, were
unrelated to the discharge, the respondent points out that Mr. Dziewa testified the
comments had no impact on his rating of the complainant. However, the
commission does not believe this factor has any bearing on the outcome of the
case. Even if it were to conclude that Mr. Dziewa's "C" rating of the complainant
was independent of his managers' negative comments, a matter which the
administrative law judge found not to be credible, the fact remains that it was not
Mr. Dziewa who made the decision to discharge the complainant, but Mr. Bois,
Mr. Jonas and Mr. Mammel, two of whom had commented unfavorably about the
complainant's age and suitability for the job. Under all of the facts and
circumstances, the commission believes that the discriminatory remarks made by
the respondent's managers were relevant to the decision to discharge the
complainant, and that the non-discriminatory rationale offered by the respondent
to explain its actions was a pretext for discrimination against the complainant
based upon his age.

Backpay

The respondent questions the amount of backpay awarded. The administrative
law judge's backpay award is based on the assumption that the complainant
would have earned $100,000 per year -- a $75,000 salary, plus a $25,000 incentive
bonus -- in 2001 and 2002. The respondent argues, as it did at the hearing, that it
was understood the complainant's compensation would change after his second
year in the Dri-Tec division and that the complainant would not have received his
$25,000 bonus after leaving Dri-Tec. The respondent maintains that, because the
complainant was transferred out of Dri-Tec after only nine months, he was not
eligible for the bonus in the second year, at which point he would have been in a
different division. It, therefore, suggests that the backpay award should be
reduced accordingly.

The parties evidently did not discuss what the complainant's salary would be when
he was transferred out of the Dri-Tec division and, while the respondent may have
planned to eliminate the bonus, it did not expressly tell the complainant that this
was the case, and the complainant proceeded under the assumption that his
$25,000 bonus would continue for two years as planned. Moreover, the
respondent did not introduce any evidence at the hearing with regard to the
complainant's 2002 salary, and although during its cross-examination of the
complainant it attempted to call into question his assumptions about his salary, it
did not present any testimony or documentary evidence of its own on this point.
Given these circumstances, the commission believes a conclusion that the existing
contract was ongoing is the most reasonable one based on the evidence.

The commission also notes that the reason the complainant received the incentive
bonus was because Dri-Tec was a brand new product and he was not expected to
make many sales. Thus, the sales incentive for Dri-Tec was meant to replace the
bonus or commission the complainant would have earned working with a more
established product. If the complainant were not awarded the sales incentive this
would not necessarily serve to reduce his backpay, since his make-whole remedy
might then encompass the sales commission or bonus he would have been able to
earn based upon his sales in the hospital division.

Attorney Fees

Finally, the respondent challenges two aspects of the attorney fee award. (2) First, the respondent argues for
reduction of the fees awarded for reviewing discovery requests. The respondent
maintains that the complainant's attorney reviewed discovery responses and
discussed them with the complainant for two hours on November 4, 2002, then
spent an additional eight hours reviewing discovery responses on December 2 and
4. The respondent contends that the additional eight hours should be excluded,
since no new discovery was served until December 11 and because the
complainant's attorney has not explained why he needed to spend an additional
eight hours reviewing the same responses.

The respondent's argument is a compelling one. The respondent served the
complainant with seven pages of responses to requests to admit or deny on
November 4, but did not serve any further discovery material prior to
December 11. Consequently, although the December 4 entry states, "Review of
further RFT discovery," it appears that the complainant's attorney was actually re-reviewing the documents provided on November 4 on the two subsequent
occasions identified by the respondent. If, in fact, the complainant's attorney was
reviewing other documents of which the commission is unaware, he could have
availed himself of the opportunity to explain this when he submitted his
responsive brief to the commission. He has not done so, and the commission sees
no other explanation for the fee entry than that offered by the respondent.

Having first concluded that the complainant's attorney fee request includes a total
of ten hours spent reviewing responses to requests to admit or deny, the
commission must agree with the respondent that this was an excessive amount of
time to have expended reviewing seven pages of discovery material. The
complainant's attorney's records indicate that it took him five hours to draft the
requests to admit or deny, and while that is not necessarily a measure of how long
it should have reasonably taken him to review the responses, it does seem unlikely
that it would take longer to read responses than it took to draft the questions in
the first place. Moreover, while there might be a plausible explanation as to why
ten hours was necessary, the complainant's attorney has failed to offer one. The
commission concludes that five hours would have been sufficient for the careful
review of the discovery materials in question, and it has reduced the attorney fee
award accordingly.

The respondent also contends that the complainant's attorney spent 35.5 hours
reviewing the transcript and preparing his post-hearing brief, which was twenty-
two pages in length and contained "virtually no legal citation." The respondent
contends that this fee request is excessive and suggests that a more appropriate
amount of time would be 18.25 hours. However, the administrative law judge
considered the same argument and concluded that the fee request was not
excessive, and the commission sees no compelling reason to disagree. Although
the complainant's brief did not contain many legal citations, it did contain
numerous citations to the transcript, and the commission declines to find that the
amount of time billed for preparation of the brief was excessive.

Finally, the complainant has requested a total of $1,725, representing 11.5 hours
of work, in conjunction with responding to the respondent's petition and brief.
The commission believes this request is reasonable, and although the respondent
has filed a responsive brief, it has not challenged it. The commission, therefore,
has modified the administrative law judge's decision to include an additional
$1,725 in attorney fees reasonably incurred in conjunction with the proceedings
before the commission.

(1)( Back
) The actual finding is that the complainant only worked in the hospital division for
"about four weeks." (See para. 15.)

(2)( Back ) The commission notes
that, in its responsive brief, the complainant's attorney argues for reversal of that portion of the
administrative law judge's decision denying him fees in conjunction with certain depositions.
However, if the complainant wished to challenge that aspect of the administrative law judge's
decision, his recourse was to file his own petition. While the filing of a petition for review by
any party vests the commission with jurisdiction to review the entire decision, the commission
generally does not exercise that jurisdiction to address issues that are neither expressly nor
implicitly raised by a petition for review. Dude v. Thompson (LIRC, Nov. 16, 1990).